SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2517-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMANTHA CRUZ, a/k/a

ANGELA CRUZ,

Defendant-Appellant.

_________________________

Submitted May 4, 2020 – Decided June 4, 2020

Before Judges Sabatino and Sumners.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Indictment No. 15-02-0065

and Accusation No. 10-06-0573.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Michele A. Adubato, Designated Counsel, 

on the brief).

Camelia M. Valdes, Passaic County Prosecutor, 

attorney for respondent (Ali Y. Ozbek, Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Defendant Samantha Cruz, a non-United States citizen, appeals the Law 

Division order denying her petition for post-conviction relief (PCR) following 

an evidentiary hearing. On appeal, defendant argues:

POINT I

SINCE THE DEFENDANT ESTABLISHED THE

TWO PRONGS OF STRICKLAND V. 

WASHINGTON[1] FOR INEFFECTIVE 

ASSISTANCE OF COUNSEL IT WAS ERROR FOR 

THE COURT TO DENY [DEFENDANT'S] PETITION 

FOR POST[-]CONVICTION RELIEF.

POINT II

IT WAS ERROR FOR THE PCR COURT TO DENY 

DEFENDANT'S MOTION TO VACATE HER 

GUILTY PLEA. 

We disagree with the PCR judge by concluding trial counsel provided 

ineffective assistance for failing to notice defendant's pre-sentence report 

provided she was a Mexican national, which was contrary to her assertions in 

her plea form and plea colloquy that she was a United States citizen. We affirm, 

however, as there was no prejudice to defendant because counsel would not have 

succeeded in withdrawing her guilty pleas principally for the reasons determined 

by the judge when he denied her PCR request to vacate them.

 

1

 466 U.S. 668 (1984).
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I

Defendant pled guilty to an accusation charging her with aggravated 

assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(3), and to an indictment 

charging her with intent to distribute a controlled dangerous substance (CDS) 

within 1000 feet of a school, N.J.S.A. 2C:35-7 and 2C:35-5(a). During the plea 

colloquy, the judge, who was also the sentencing and PCR judge, asked

defendant, "[y]ou're a United States citizen?" to which she replied, ''[y]es." The 

response was consistent with her plea form, where she indicated "[y]es" to the 

question inquiring whether she was a citizen of the United States. Defendant 

also responded "[y]es" when the judge asked her whether she "had enough time 

to discuss this matter, not just the plea forms, but the case in [total] with [her 

counsel], is that correct?"

At defendant's sentencing about two months later, the judge adhered to 

defendant's plea agreement by dismissing the other pending charges against her 

and sentenced her to two five-year concurrent terms of probation and a time 

served 364-days county jail term. Defendant did not appeal her convictions or 

sentences.

About a month after sentencing, defendant was charged with violation of 

probation. Prior to disposition of the charge and facing deportation based upon 
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her CDS conviction, the self-represented defendant filed a PCR motion to 

withdraw her pleas and vacate her convictions alleging: (1) trial counsel failed 

to advise her of the immigration consequences of her guilty pleas and to 

negotiate a plea that would not have immigration consequences; and (2) she 

would not have pled guilty had she been aware of the immigration consequences 

of her pleas.

In a subsequently filed "Amended Petition" by assigned PCR counsel,

defendant certified she was not guilty of either conviction and only pled guilty 

because the plea agreement called for her release from jail after being 

incarcerated for more than eight months pending resolution of her charges. 

Defendant contended the aggravated assault conviction should be vacated 

because she was defending a third person who was being assaulted. She also 

argued the CDS conviction should be vacated because the CDS was not hers and 

it was found at a house she just happened to be visiting pursuant to a search 

warrant issued against a resident of the house. 

Upon hearing oral argument on defendant's request for a PCR evidentiary 

hearing, the judge agreed. Following the hearing, in which counsel and 

defendant testified over the course of two separate dates, the judge issued an 
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order and seventeen-page letter opinion denying PCR and defendant's motion to 

vacate her guilty pleas.

In denying PCR, the judge determined counsel did not provide ineffective 

assistance as required by the first prong of Strickland's two-prong test based 

primarily on his credibility assessment of defendant and counsel's testimony. 

Contrary to defendant's representation, the judge found counsel thoroughly 

reviewed the plea form signed by defendant, which indicated she was a United 

States citizen, without rushing her to complete it. Relying upon State v. NunezValdez, 200 N.J. 129 (2009), State v. Gaitan, 209 N.J. 339 (2012), and State v.

Vieira, 334 N.J. Super. 681, (Law Div. 2000), the judge determined counsel had 

no reason to discuss the immigration consequences of defendant's pleas because 

she indicated she was a United States citizen. The judge noted defendant's 

presentence report, "indicated that [defendant] was born in Mexico and was a 

resident alien[,]" and that counsel "testified that prior to sentencing he would 

have reviewed defendant's presentence report, but he did not remember taking 

note that [defendant's] place of birth was in Mexico." The judge, however, 

reasoned that since "defendant misrepresented her citizenship status under 

oath[,]" it "was relied upon by counsel . . . , the State and [him] at the time of 

plea and at sentence."
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The judge further noted testimony that on two separate arrests, defendant 

gave different pedigree information regarding her name, birthdate, address, 

social security number, and her citizenship status. The judge pointed out 

defendant testified she did not recall him asking at her plea "whether she was a 

United States citizen, though the transcript clearly indicates she was asked that 

question and answered in the affirmative."

In sum, the judge stated: 

Based on the numerous discrepancies and outright 

misrepresentations set forth above, this court finds that 

[defendant's] testimony entirely lacks credibility and 

cannot form the basis upon which relief under may be 

granted. To this court, counsel, court personnel and the 

police, petitioner has consciously misrepresented not 

only her immigration status, but her birthdate, social 

security number, and home address. At the plenary 

hearing, she either misremembered or misrepresented 

the basic procedural history of her case. 

 

 . . . .

Accordingly, there was no basis for [counsel]to discuss

the immigration consequences with [defendant].

Absent a legitimate basis for imputing knowledge of 

[defendant's] foreign citizenship, the relief 

contemplated under Nunez-Valdes, Gaitan, and Vieira

is not implicated.

In the same vein, this court finds that the ineffective 

assistance of counsel standard has not been met. To the 

contrary; this court finds that the ineffective assistance 

of counsel standard has not been met. To the contrary; 
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this court finds counsel to have exercised "reasonable 

professional judgement" and to have provided more 

than sufficient legal assistance and in this case.

II

Before us, defendant argues the judge erred in finding she did not establish 

Strickland's two prong test for ineffective assistance of counsel because he

placed too much reliance on her representations on the plea form and in court 

that she was a citizen. Defendant argues she was unaware of the immigration 

consequences of her pleas, and had she been made aware by her counsel she 

would not have pled guilty. She asserts given the conflicting indications in her 

discovery (police reports) regarding her citizenship status and counsel's failure 

to see her naturalization papers, the presentence report should have alerted 

counsel to her lack of United States citizenship.

The State contends defendant's continual misrepresentation of her 

citizenship status belies application of Padilla v. Kentucky, 559 U.S. 356 (2010), 

thereby defeating her PCR claims based upon counsel's lack of advice regarding 

the impact of guilty pleas on her ability to remain in this country because she is 

a Mexican national. According to the State, the judge's denial of relief was
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correct based on the record. The State further contends the judge properly 

weighed the Slater2factors in denying her motion to vacate her guilty pleas. 

To establish a prima facie claim of ineffective assistance of counsel, the 

defendant is obligated to show not only the particular manner in which counsel's 

performance was deficient, but also that the deficiency prejudiced his right to a 

fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987). 

Under the first prong of this test, the defendant must demonstrate that "counsel 

made errors so serious that counsel was not functioning as the 'counsel' 

guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 

687; Fritz, 105 N.J. at 52. In the context of ineffective assistance related to a 

plea, the second prong requires a defendant to "'show that the deficient 

performance prejudiced the defense.'" State v. Taccetta, 200 N.J. 183, 193 

(2009) (citation omitted). 

Prejudice is not presumed and must be proven by the defendant. Fritz, 

105 N.J. at 52. The inquiry is whether a defendant can "show that, had he been 

properly advised, it would have been rational for him to decline the plea offer 

and insist on going to trial and, in fact, that he probably would have done so[.]" 

State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (citation omitted). 

 

2

 State v. Slater, 198 N.J. 145, 157-58 (2009).
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"[A] [defendant] must convince the court that a decision to reject the plea 

bargain would have been rational under the circumstances." Padilla, 559 U.S. 

at 356. This "is an exacting standard: '[t]he error committed must be so serious 

as to undermine the court's confidence in . . . the result reached.'" State v. 

Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (citations omitted). 

Moreover, "[t]he failure to raise unsuccessful legal arguments does not 

constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 

625 (1990) (citing Strickland, 466 U.S. at 688; Fritz, 105 N.J. at 52); see also

State v. O'Neal, 190 N.J. 601, 618-19 (2007) (holding "[i]t is not ineffective 

assistance of counsel for defense counsel not to file a meritless motion . . . ."). 

Our review of an order granting or denying PCR contains consideration 

of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004). 

Where, as here, the judge conducts an evidentiary hearing, we must uphold the 

judge's factual findings, "'so long as those findings are supported by sufficient 

credible evidence in the record.'" State v. Rockford, 213 N.J. 424, 440 (2013) 

(quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we defer to a 

trial judge's findings that are "'substantially influenced by [the judge's] 

opportunity to hear and see the witnesses and to have the 'feel' of the case, which 

a reviewing court cannot enjoy.'" Ibid. (alteration in original) (quoting 
10 A-2517-18T4

Robinson, 200 N.J. at 15). However, "we need not defer to a PCR [judge's]

interpretation of the law[,]" as all legal conclusions are reviewed de novo. Id.

at 540-41.

Here, the alleged ineffectiveness pertained to whether counsel properly 

advised defendant about the immigration consequences of her guilty pleas to 

aggravated assault and CDS charges. In the context of a guilty plea, the standard 

to establish ineffective assistance of counsel is somewhat modified. "[A] 

defendant can show ineffective assistance of counsel by proving that his [or her] 

guilty plea resulted from 'inaccurate information from counsel concerning the 

deportation consequences of his [or her] plea.'" State v. Brewster, 429 N.J. 

Super. 387, 392 (App. Div. 2013) (quoting Nunez-Valdez, 200 N.J. at 143). 

Counsel's duty includes an affirmative responsibility to inform a defendant 

entering a guilty plea of the relevant law pertaining to mandatory deportation. 

Padilla, 559 U.S. at 368-69. This court has made clear that counsel's "failure to 

advise a noncitizen client that a guilty plea will lead to mandatory deportation 

deprives the client of the effective assistance of counsel guaranteed by the Sixth 

Amendment." State v. Barros, 425 N.J. Super. 329, 330-31 (App. Div. 2012) 

(citing Padilla, 559 U.S. at 369). 
11 A-2517-18T4

We take no issue with the judge's credibility findings as they are based 

upon his assessment of the live testimony by defendant and counsel, as well as 

the plea proceeding. The record leaves little doubt defendant lacked credibility

based upon her conflicting representations as to her citizenship status. A 

cornerstone of the attorney-client relationship is candor. It is apparent 

defendant has not satisfied her responsibility within that relationship. That said, 

when information concerning a client's citizenship status is presented to an 

attorney contradicting their client's representations and has deportation 

consequences, it is the attorney's professional duty to bring it to the client's 

attention first, and then the court. As evidenced by the following colloquy, 

counsel did not notice the presentence report stated defendant was born in 

Mexico and was not a United States citizen:

[Question]: Okay. So now, when you see this presentence report prior to sentence being imposed, and 

you see that it indicates Mexico as a place of birth, did 

it cause you any concern that you have to speak with 

your client? First of all, was this something that you 

were completely comfortable with because she had 

indicated Mexico but somehow indicated to you how 

she became a naturalized citizen?

[Counsel]: I don't -- I don't specifically recall noticing

the place of birth Mexico and -- or having a

conversation with [defendant].
12 A-2517-18T4

Counsel then candidly stated that because defendant was late for 

sentencing, he was unsure as to whether he reviewed the presentence report 

"faster than we would have normally went through it." More troubling is that 

when the judge asked counsel at sentencing whether he had "any additions, 

deletions, corrections to the [presentence report]," he replied "I do not, Your 

Honor. I have reviewed it."

We cannot disregard counsel's failure to address defendant's citizenship 

status in the presentence report with defendant, regardless of her lack of candor 

with counsel and the judge. This was not an onerous burden on counsel, 

especially given the contradictory discovery regarding defendant's citizenship. 

This situation, however, differs from that in Padilla and Barros addressing 

counsel's obligation to advise his or her non-United States citizen client 

regarding the deportation consequences of pleading guilty to certain offenses. 

There, the defendants did not misrepresent to their counsel nor the plea court 

that they were United States citizens. In this case, it was after defendant pled 

guilty and prior to sentencing that counsel was put on notice through the 

presentence report that defendant was a Mexican national. 
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III

Our conclusion that counsel was ineffective does not end our analysis of 

defendant's ineffective assistance claim because Strickland's second prong –

prejudiced by counsel's ineffectiveness – must be addressed. If counsel would 

have discussed the citizenship situation with defendant – assuming she would 

have confirmed she was not a United States citizen – the proper course of action 

would have been for counsel to request a postponement of the sentencing so he 

could file a motion to vacate her guilty pleas. Under the circumstances, it would 

have been appropriate to grant the request. 

In determining trial counsel was not ineffective, the judge did not directly 

address the prejudice prong. However, the contentions trial counsel would have 

raised in a motion to vacate defendant's guilty plea prior to sentencing were in 

fact raised in her PCR petition and denied by the judge in his PCR ruling. Thus, 

we examine this portion of the judge's ruling.

Before analyzing defendant's PCR request to vacate her guilty pleas and 

the judge's rejection of her arguments, we address the relevant law. To grant a 

defendant's request to withdraw a defendant's guilty plea, the trial court must 

consider and balance the four-factor Slater test, which provides:

(1) whether the defendant has asserted a colorable 

claim of innocence; (2) the nature and strength of 
14 A-2517-18T4

defendant's reasons for withdrawal; (3) the existence of 

a plea bargain; and (4) whether withdrawal would result 

in unfair prejudice to the State or unfair advantage to 

the accused. 

[Slater, 198 N.J. at 157-58.]

The standard to withdraw a guilty plea prior to sentencing is in the interest 

of justice. State v. Howard, 110 N.J. 113, 123-24 (1988) (citation omitted). 

"'[T]he burden rests on the defendant, in the first instance, to present some 

plausible basis for his request, and his good faith in asserting a defense on the 

merits.'" Slater, 198 N.J. at 156 (quoting State v. Smullen, 118 N.J. 408, 416 

(1990)). "Generally, representations made by a defendant at plea hearings 

concerning the voluntariness of the decision to plead, as well as any findings 

made by the trial court when accepting the plea, constitute a 'formidable barrier' 

which defendant must overcome before he will be allowed to withdraw his plea." 

State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431 

U.S. 63, 74 (1977)). Accordingly, "'courts are to exercise their discretion 

liberally to allow plea withdrawals[]'" and "'[i]n a close case, the scales should 

usually tip in favor of defendant.'" State v. Munroe, 210 N.J. 429, 441 (2012)

(internal quotation omitted) (quoting Slater, 198 N.J. at 156); Taylor, 80 N.J. at 

365. Nevertheless, the Munroe Court explained that "[l]iberality in exercising 

discretion does not mean an abdication of all discretion, and, accordingly, any 
15 A-2517-18T4

plea-withdrawal motion requires a fact-specific analysis[.]" 210 N.J. at 441-42 

(first alteration in original) (citations and internal quotation marks omitted). 

Thus, we will reverse the trial court's determination of whether to allow a 

defendant to withdraw a guilty plea "only if there was an abuse of discretion 

which renders the lower court's decision clearly erroneous." Simon, 161 N.J. at 

444 (citing Smullen, 118 N.J. at 416). 

In denying defendant's motion to vacate her guilty pleas, the judge initially 

found review of the plea hearing transcript supported his "determination that 

there was an adequate factual basis for the plea and that it was made voluntarily, 

with an understanding by . . . defendant as to the nature of the charge and the 

consequences of her plea" as required by Rule 3:9-2. 

In weighing the four Slater factors, the judge decided defendant failed to 

establish a basis for withdrawing her pleas. As to the first factor, the court found 

defendant did not assert a colorable claim of innocence for each conviction. 

Defendant testified at the evidentiary hearing she was not guilty of aggravated 

assault because she was defending a third person. On the CDS conviction, 

defendant testified the CDS was not hers because police were executing a search 

warrant directed at another person who lived at a residence where she did not 

live. The judge found defendant's proofs lacking because she did not submit any 
16 A-2517-18T4

credible or specific facts in support of her claim of innocence. For example, 

regarding the CDS guilty plea, the judge pointed out: "While executing a search 

warrant for the second floor, the police heard someone run from the second to 

the first floor, where they found defendant hiding in the presence of empty 

glassine packets and drug paraphernalia."

Regarding the second factor, the nature and strength of defendant's 

reasons for withdrawal, defendant argues she sought to withdraw her guilty pleas 

because they were not voluntary, meaning she would not have pled guilty if she 

knew deportation would follow. The judge found defendant's request to vacate 

her pleas rested "solely upon the unanticipated consequence of the discovery of 

her true immigration status – a status she actively misrepresented – and not 

genuine claims of innocence . . . ."

The judge stated the third factor, the existence of plea agreement, requires 

defendant to satisfy a heavy burden to withdraw her pleas, and gave it no weight

in her favor.

As to the fourth factor, whether plea withdrawal would result in unfair 

prejudice to the State or unfair advantage to the accused, defendant argues the 

State presented no proof it would be prejudiced by having to go to trial on 

defendant's charges. The judge noted since defendant's claims under the first 
17 A-2517-18T4

three factors were entitled to no weight, Slater does not require the State to show 

prejudice if the pleas were withdrawn. 198 N.J. at 162 (citations omitted). 

Nonetheless, the judge determined "[i]t is axiomatic that the passage of time 

tends to favor the accused and prejudice the State––witnesses move and become 

difficult to locate[]; evidence is mislaid or lost; memories fade with time." 

By finding defendant failed to satisfy the Slater factors and had not 

established that a failure to withdraw her guilty plea would result in a manifest 

injustice, the judge denied the motion. We see no abuse of discretion, nor unjust 

result. The judge's weighing of the Slater factors is supported by the record. 

The factual basis defendant gave for her pleas during her colloquy were not 

overcome by her PCR certification and the arguments presented to the judge or 

to this court. Had trial counsel raised this motion after learning through the 

presentence report defendant was not a United States citizen the same result 

would have occurred; the motion would have been denied. Thus, there was no 

prejudice caused by trial counsel's failure to make this same motion upon review 

of the presentence report and necessary consultation with defendant. Moreover, 

defendant should not obtain the benefit of relitigating charges made against her 

where she has created a trail of deception without any facts in the record

supporting mitigation of her actions. 
18 A-2517-18T4

Affirmed.